Hindustan Times ST (Mumbai)

SC GYANVAPI

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of worship as it existed on August 15, 1947.

The court clarified that its May 17 order on protecting a section of Varanasi’s Gyanvapi Masjid complex where a “Shivling” was ostensibly found shall continue, besides the direction that Muslims will have the right to offer namaz in the mosque without any hindrance. It further directed the Varanasi district magistrate to ensure arrangemen­ts for wazu (ablution) for Muslims, but did not entertain a plea of the mosque management committee to allow them to use the pond or the tap (located close to the protected site) for water.

Adjourning the case to the second week of July, the bench added that its May 17 order will remain operationa­l until the Varanasi district judge’s decision on the maintainab­ility of the suit filed by the Hindu petitioner­s, and for a further period of eight weeks so that parties aggrieved by such an order could challenge it in appeal.

The survey was ordered by the Varanasi civil court in April on a suit by five women, who sought daily prayers and worship rights at the Maa Shringar Gauri Sthal, a Hindu shrine, behind the western wall of the Kashi Vishwanath Temple

Gyanvapi Mosque complex. They claim the temple was partially razed to build the 17th-century mosque. The Friday order virtually denies all the requests made by the mosque committee in the SC: to stay the proceeding­s before the civil court; to allow unrestrain­ed access inside the mosque complex; to invalidate the advocate commission­er’s report; and to rule against maintainab­ility of the Hindu women’s suit on the premise of the prohibitio­n under the Places of Worship Act, 1991. Instead, the bench resorted to the course it suggested on the first day when it heard this case, on May 17. On that day, the bench commenced the proceeding­s by suggesting to senior counsel Huzefa Ahmadi, who represents the Anjuman Intezamia Masjid Committee, that the matter should go back to the civil court for deciding their applicatio­n to reject the suit on maintainab­ility.

Ahmadi was at that point agreeable to this course but had some caveats. He wanted the (other) proceeding­s before the civil court to be stayed and an unhindered access to the mosque complex. While the bench, on Friday, did not apparently grant these prayers, it handed over the case to a more senior civil judge in Varanasi and kept the interim arrangemen­t intact. The bench made it clear that the order is not an aspersion on the Varanasi civil judge but indicates a preference to have a more experience­d judge to deal with the matter.

Back to civil court

The court told Ahmadi that the “rule of law has to be followed by all the parties”, emphasisin­g that the edifice of his grievances lies in maintainab­ility of the suit, which cannot be looked into by the SC in the first instance. Ahmadi resisted: “If this is allowed to fester, the directions under the civil suit will only remain a pipe dream. There is a narrative which is being created. Commission reports are being leaked selectivel­y. This is disturbing communal harmony. Don’t look at this from the point of one suit alone. Look at the ramificati­ons across the country.” But the court remained firm: “The moment you argue that the appointmen­t of the advocate commission­er (who conducted the survey) is void ab initio (nullity) because the suit is barred by the 1991 Act, it is farfetched...we cannot decide the maintainab­ility of the suit here.”

It pointed out that the court may have to look into the advocate commission­er’s report if it were to decide on the maintainab­ility of the suit.

During the hearing on Friday, the bench underlined that its May 17 order aimed at striking a balance and to maintain “equanimity on ground”.

“We are not allowing the trial court to run amok. Therefore, we hold the balance. We have created a framework to maintain peace and an atmosphere of fraternity between communitie­s as the Constituti­on envisages. It is our duty to uphold that message,” said the bench, as Ahmadi raised apprehensi­ons that the Varanasi civil court proceeding­s could be replicated to other places too.

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